Update on the Kulturkampf: Scalia edition

I’ve been using the term Kulturkampf (German for “culture war”), because Trump and Bannon are waging a culture war on the left and on the “establishment” (right and left). The term “Kulturkampf” comes from 1870s Germany, in Bismarck’s “culture battle” leading the Protestants and German nationalism against the Catholic Church. It was a predecessor to Hitler’s similar goal of nationalism against the Catholic Church, and the term Kulturkampf came back into use in the Nazi era. When I use the term Kulturkampf, I’m not trying to be overly inflammatory. I’m thinking that we are in the middle of a nationalist culture war more like 1870s Germany, but I worry that it could get much worse. So I use the term Kulturkampf because of that ambiguous, and because the word “kampf” hints at Bannon’s agenda and the real “alt-right” racist/white nationalist forces that are behind Trump.

In the midst of all this fawning praise of Scalia the Giant tonight, over the next month or so, and every four years, I want to note that first, I assign Scalia’s Matter of Interpretation when I teach Constitutional Law or Constitutional History, and I try to present his arguments faithfully and with balance. But he introduced the word “Kulturkampf” in an inappropriate context. If we’re being generous, it was thoughtless, but if we’re being less generous, it was deliberately provocative and imprudent (im-juris-prudent).  In 1996, the Supreme Court overturned an anti-gay Colorado law in Romer v. Evans.  Scalia dissented, and used the word “Kulturkampf” favorably, as if a kulturkampf was obviously a good thing for voters to wage against gays, as if it would be peachy to hint at the glories of German nationalism in the same context as anti-gay discrimination:

“The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a ‘bare … desire to harm’ homosexuals … but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago … and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. … This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality … is evil. I vigorously dissent.”

I think Scalia deserves credit as one of the “great” Justices in terms of influence and jurisprudence, but I would not call him a good judge in terms of human prudence. In the second half of his career on the Court, starting around the time of his “Kulturkampf” dissent in 1996, he became a caricature of himself, playing to his Federalist Society/Fox News fans with bombast, hyperbole, esoteric phrases, insults, and more partisanship than principle. I’m trying to keep an open mind about Neil Gorsuch, but all of the Scalia worship from him and his supporters isn’t helping.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

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